Withdrawing I-130?

[Dean&Dana 0]

Hey everybody!

I have something of an odd question. My UK husband and I have been married for over two years, and during that time, we've lived in the UK, where I've had a UK residency visa from our marriage since Oct. 2011. This year was the year we always intended to move to the US. We considered Direct Consular Filing, and obviously now I deeply regret that we did not go that path while I was still in the UK. However, I moved to the US in August. We didn't know then that there was a huge I-130 backlog (I should have delved deeper into this forum!), and there was a great job opportunity for me if I left then. Now, though, we've realized that I can do this job from the UK, and it may not have been necessary for me to move. And we've seen that I-130s at the London embassy are already processing October applications, whereas the I-130 we filed in September is unlikely to get an NOA2 for several months at the least, from what I'm hearing about current processing times.

Though I live in the US now, my UK residency visa is still valid through Jan. 15, and I am returning for a long visit on Dec. 16. I know the DCF rule is that you must have at least 6 months as a resident, and though I have been in the US establishing a job and residency here, I still technically have had a residency visa there since October 2011. Could I withdraw my withstanding I-130, and then file DCF in December from the UK? I do fully understand that I would be sacrificing the $420 for that first I-130 application --that is fine, as it doesn't come near the cost of the monthly expenses of running apartments in two countries for the foreseeable future.

The other question is, if all that is actually OK, would I still need to be considered a legal UK resident at the time of the embassy interview? Or is it only necessary that you be considered a resident at the time of filing? My visa comes due in January, and it's something like 700 pounds to renew it, which would give me indefinite leave to remain in the UK. However, that new visa wouldn't get much use, and if it were allowable, I'd much rather either stay in the UK on a tourist visa after my residency visa expires, or return to my US apartment, and come back for the UK interview when it's time, as a tourist. However, if it is necessary, I'll renew my UK visa--even with the cost of the UK visa and paying twice for the I-130, it's still cheaper than waiting for this original I-130 for the next year, and paying to run two households/being apart the entire time.

Any insight or advice on this issue would be very much appreciated!!

All the best, and I wish everyone else on this I-130 boat luck and strength in dealing with this very trying situation,

Dana

[Dean&Dana 0]

Hey everybody!

Apologies I know I just posted this question in another forum on the site, but I've realized this is the appropriate forum. I have something of an odd question. My UK husband and I have been married for over two years, and during that time, we've lived in the UK, where I've had a UK residency visa from our marriage since Oct. 2011. This year was the year we always intended to move to the US. We considered Direct Consular Filing, and obviously now I deeply regret that we did not go that path while I was still in the UK. However, I moved to the US in August. We didn't know then that there was a huge I-130 backlog (I should have delved deeper into this forum!), and there was a great job opportunity for me if I left then. Now, though, we've realized that I can do this job from the UK, and it may not have been necessary for me to move. And we've seen that I-130s at the London embassy are already processing October applications, whereas the I-130 we filed in September is unlikely to get an NOA2 for several months at the least, from what I'm hearing about current processing times.

Though I live in the US now, my UK residency visa is still valid through Jan. 15, and I am returning for a long visit on Dec. 16. I know the DCF rule is that you must have at least 6 months as a resident, and though I have been in the US establishing a job and residency here, I still technically have had a residency visa there since October 2011. Could I withdraw my withstanding I-130, and then file DCF in December from the UK? I do fully understand that I would be sacrificing the $420 for that first I-130 application --that is fine, as it doesn't come near the cost of the monthly expenses of running apartments in two countries for the foreseeable future.

The other question is, if all that is actually OK, would I still need to be considered a legal UK resident at the time of the embassy interview? Or is it only necessary that you be considered a resident at the time of filing? My visa comes due in January, and it's something like 700 pounds to renew it, which would give me indefinite leave to remain in the UK. However, that new visa wouldn't get much use, and if it were allowable, I'd much rather either stay in the UK on a tourist visa after my residency visa expires, or return to my US apartment, and come back for the UK interview when it's time, as a tourist. However, if it is necessary, I'll renew my UK visa--even with the cost of the UK visa and paying twice for the I-130, it's still cheaper than waiting for this original I-130 for the next year, and paying to run two households/being apart the entire time.

Any insight or advice on this issue would be very much appreciated!!

All the best, and I wish everyone else on this I-130 boat luck and strength in dealing with this very trying situation,

Dana

[Nich-Nick 3,354]

You don't have to live in the UK at the interview time, nor do you have to attend. Many American spouses move sometime after filing and to establish domicile and find a job so they can provide the affidavit of support. This is the DCF forum http://www.visajourney.com/forums/forum/82-direct-consular-filing-dcf-general-discussion/

And this is a helpful thread in the UK forum detailing DCF London. A few changes have been made at London so read the entire thread to find any updates to the procedure. http://www.visajourney.com/forums/topic/443127-dcf-london-i-130-for-ir1cr1-spouse-guide/

Lost _at_sea is a good resource person to help you.

[Jawaree 719]

U have to have residency in UK to file DCF...its good U set up domicile

in the US however I am not sure how the cancellation of filing would

go, u could do a free consult & ask 2 attys also call USCIS and ask to

speak to 2nd tier officer to be sure on how to go about things...good luck

[TBoneTX 47,583]

*** Duplicate topics merged in CR-1 Process forum. OP, please post the same question only once -- it enables answers to be intact in one place. ***

[lost_at_sea 995]

Hello! We originally had an I-129f going, withdrew, married and went DCF. There's no issue with changing your mind about course.

They're going to want to see that you've been resident in the UK for the required 6 months before you can file - but if it will just look like you went to the US to sort out your job (you didn't relinquish residency in the UK) then I think that'll be fine. There's an email address in the big thread Nich-Nick linked to if you want to check your eligibility with them. They will want to see your UK entry stamps to show when you came to the UK etc. For my husband's - we just sent a photocopy of the pages with his work visas in them, which had the entry stamp on the adjoining page - he'd been in and out of the UK since receiving those stamps, but we just sent in the original entry ones. That's what you'd do too - the one with your visa (which I assume has the validity until date on it til next year) and the original entry stamp for that visa.

I'm wondering if you shouldn't just file DCF ASAP (while you're in the US visiting) but fill out all the forms with your residency in the UK (since that's what they'll be expecting to see). I wouldn't wait til December.

As Nich-Nick says - you only have to be resident in the UK for the I-130 filing. Once you know that's been accepted (got the NOA1 - you don't *have* to wait for that, but I'd be inclined to incase something was wrong with your filing), then you can go back to the USA and give up your UK residency.

Edited November 11, 2013 by lost_at_sea

[Dean&Dana 0]

I'm wondering if you shouldn't just file DCF ASAP (while you're in the US visiting) but fill out all the forms with your residency in the UK (since that's what they'll be expecting to see). I wouldn't wait til December.

As Nich-Nick says - you only have to be resident in the UK for the I-130 filing. Once you know that's been accepted (got the NOA1 - you don't *have* to wait for that, but I'd be inclined to incase something was wrong with your filing), then you can go back to the USA and give up your UK residency.

Thanks for the advice lost_at_sea! I have a follow-up question on your advice-- you advise filing the DCF now, however, I had understood that you need to be physically resident in the UK to file? Also, when you filed DCF after withdrawing your I-129, did the embassy request some sort of proof that you had withdrawn your I-129? Do I need to make sure I get some sort of letter of receipt from USCIS confirming the cancellation, or is the mailing receipt of my letter to USCIS enough? I don't doubt that I could get a cancellation letter from USCIS...eventually. But if I want to file Dec. 17 (or sooner, if I can in fact file while still in the US), then I'd need them to get back to me quicker than I think is their custom.

Were you physically resident in the UK when you filed?

Thanks!!

You don't have to live in the UK at the interview time, nor do you have to attend. Many American spouses move sometime after filing and to establish domicile and find a job so they can provide the affidavit of support. This is the DCF forum http://www.visajourney.com/forums/forum/82-direct-consular-filing-dcf-general-discussion/

And this is a helpful thread in the UK forum detailing DCF London. A few changes have been made at London so read the entire thread to find any updates to the procedure. http://www.visajourney.com/forums/topic/443127-dcf-london-i-130-for-ir1cr1-spouse-guide/

Lost _at_sea is a good resource person to help you.

Thanks Nich-Nick! I'll check these out.

[lost_at_sea 995]

Thanks for the advice lost_at_sea! I have a follow-up question on your advice-- you advise filing the DCF now, however, I had understood that you need to be physically resident in the UK to file? Also, when you filed DCF after withdrawing your I-129, did the embassy request some sort of proof that you had withdrawn your I-129? Do I need to make sure I get some sort of letter of receipt from USCIS confirming the cancellation, or is the mailing receipt of my letter to USCIS enough? I don't doubt that I could get a cancellation letter from USCIS...eventually. But if I want to file Dec. 17 (or sooner, if I can in fact file while still in the US), then I'd need them to get back to me quicker than I think is their custom.

Were you physically resident in the UK when you filed?

I'm the Brit. My American husband was physically present the day we filed the I-130 in the UK, but he could have left the next day if he wanted, and actually I could have mailed it in myself if he'd been away (we both did a lot of business trips abroad, it wasn't uncommon for us to be out of the country a lot).

Physical presence doesn't determine your residency, exactly. Do you have a home there? Do you live there more often than another country? Do you have permission from UKBA to live in the UK? Those things determine residency.

I suppose in regards to your residency... I'd ask you - Are you a resident in the UK? Is your current trip to the USA a temporary one?

When we withdrew our I-129f, we mailed a letter to CSC (who had our case) stating the withdrawal, and they mailed us a receipt confirming it's withdrawal. I kept it, but I never had to show it to anyone - so no, they didn't want proof. You should mail in a letter in the same way, just to keep things tidy. You don't need the proof for the I-130 filing though, and as with us, I doubt London will ever care to see anything about the old petition.

Edited November 11, 2013 by lost_at_sea

[Dean&Dana 0]

I'm the Brit. My American husband was physically present the day we filed the I-130 in the UK, but he could have left the next day if he wanted, and actually I could have mailed it in myself if he'd been away (we both did a lot of business trips abroad, it wasn't uncommon for us to be out of the country a lot).

Physical presence doesn't determine your residency, exactly. Do you have a home there? Do you live there more often than another country? Do you have permission from UKBA to live in the UK? Those things determine residency.

When we withdrew our I-129f, we mailed a letter to CSC (who had our case) stating the withdrawal, and they mailed us a receipt confirming it's withdrawal. I kept it, but I never had to show it to anyone - so no, they didn't want proof. You should mail in a letter in the same way, just to keep things tidy. You don't need the proof for the I-130 filing though, and as with us, I doubt London will ever care to see anything about the old petition.

Thank you so much, this is such helpful advice! Yes, we do have a home in the UK and my husband is there now. Until August 2013, I've lived there uninterrupted since Oct 2011, when I got my UK residency visa. However, where I get a little nervous is that since August 2013, I've established a residency in the US. One of the reasons we didn't file DCF in the first place was because I didn't want to deal with the guesswork of Intent to Reestablish Domicile, and spend all the time and money on a visa without absolute confidence they'd consider my "intent" sufficient. So I left in August, got a job and an apt. in the US, and filed. We always intended that I'd return to the UK to spend much of waiting time with him. So, I don't know then whether they'd look at my move in August as abandonment of UK residency, or my place in the US as my principal domicile. It is true that I'd always intended to come back to the UK and leave the US apt vacant for months at a time, however, the filing of the I-130 may make them think this is the principal domicile. I would just hate to withdraw the I-130, and then be rejected in London on such grounds. We will certainly be calling them to talk about it, however, I've learned that with government workers in general, no two have the same understanding of the process

[lost_at_sea 995]

Thank you so much, this is such helpful advice! Yes, we do have a home in the UK and my husband is there now. Until August 2013, I've lived there uninterrupted since Oct 2011, when I got my UK residency visa. However, where I get a little nervous is that since August 2013, I've established a residency in the US. One of the reasons we didn't file DCF in the first place was because I didn't want to deal with the guesswork of Intent to Reestablish Domicile, and spend all the time and money on a visa without absolute confidence they'd consider my "intent" sufficient. So I left in August, got a job and an apt. in the US, and filed. We always intended that I'd return to the UK to spend much of waiting time with him. So, I don't know then whether they'd look at my move in August as abandonment of UK residency, or my place in the US as my principal domicile. It is true that I'd always intended to come back to the UK and leave the US apt vacant for months at a time, however, the filing of the I-130 may make them think this is the principal domicile. I would just hate to withdraw the I-130, and then be rejected in London on such grounds. We will certainly be calling them to talk about it, however, I've learned that with government workers in general, no two have the same understanding of the process

I think it'll be fine. When you file your new I-130 with London - put both your addresses as your UK ones, send them a copy of your visa (with the date in 2014 on it) with your entry stamp, and that's all they'll need.

Don't even offer up your US residency information yet (even thought you're totally allowed to have both). Save that for the interview when they actually want to see that you've got a US domicile.

[Dean&Dana 0]

I think it'll be fine. When you file your new I-130 with London - put both your addresses as your UK ones, send them a copy of your visa (with the date in 2014 on it) with your entry stamp, and that's all they'll need.

Don't even offer up your US residency information yet (even thought you're totally allowed to have both). Save that for the interview when they actually want to see that you've got a US domicile.

Thanks for all this advice, you're a lifesaver!! One last question for you --- do you think we'd be damaging ourselves to call the London embassy and talk to them about this? You mentioned that we shouldn't even offer up our US residency information yet -- would it hurt to mention it, in a call? It just makes me very nervous to go ahead and withdraw, and make all these plans, without knowing what they'll think of all this. We were intending to tell them about my UK residency visa, my long stay there, our misunderstanding of how DCF works, which is why I left in August to come to the US to establish domicile and file I-130. It was always my intent to return to the UK as well--we actually thought I'd be able to make it back sooner than December, but a grandparent visit got added in, etc. Our two big questions for them would be 1) did I need to be physically resident for the six months prior to filing DCF and 2) can my husband file now prior to my return?

Regardless of their response, we are thinking of withdrawing the I-130. However, if they say everything is fine, then I will likely book a return ticket to the US in January or February and not bother renewing my UK visa, as the turnaround for DCFs are so short it wouldn't get much use. If they say no, you need to be here another six months and then file, I'll know to renew my visa, end my lease in the US, and would return to the UK for good in December, as it'd still be faster to live another six months in the UK and then file than it would to wait for this I-130. So, getting those answers from the official source now would give us peace of mind for which path to pursue, in terms of airline tickets, releasing the apartment, etc. But, I would not want to call if we unnecessarily complicate things for ourselves.

Thank you again, so, so much! You've given my husband and me a lot to think about.

[lost_at_sea 995]

Thanks for all this advice, you're a lifesaver!! One last question for you --- do you think we'd be damaging ourselves to call the London embassy and talk to them about this? You mentioned that we shouldn't even offer up our US residency information yet -- would it hurt to mention it, in a call? It just makes me very nervous to go ahead and withdraw, and make all these plans, without knowing what they'll think of all this. We were intending to tell them about my UK residency visa, my long stay there, our misunderstanding of how DCF works, which is why I left in August to come to the US to establish domicile and file I-130. It was always my intent to return to the UK as well--we actually thought I'd be able to make it back sooner than December, but a grandparent visit got added in, etc. Our two big questions for them would be 1) did I need to be physically resident for the six months prior to filing DCF and 2) can my husband file now prior to my return?

Regardless of their response, we are thinking of withdrawing the I-130. However, if they say everything is fine, then I will likely book a return ticket to the US in January or February and not bother renewing my UK visa, as the turnaround for DCFs are so short it wouldn't get much use. If they say no, you need to be here another six months and then file, I'll know to renew my visa, end my lease in the US, and would return to the UK for good in December, as it'd still be faster to live another six months in the UK and then file than it would to wait for this I-130. So, getting those answers from the official source now would give us peace of mind for which path to pursue, in terms of airline tickets, releasing the apartment, etc. But, I would not want to call if we unnecessarily complicate things for ourselves.

Thank you again, so, so much! You've given my husband and me a lot to think about.

I don't think it would be damaging to ask. I'd be careful not to say you've relinquished UK residency.

The I-130 needs to be signed by the American, and you've got some paperwork to gather that you might prefer to wait and do together in person when you get back in December. Take a look at their checklist and decide.

P.S. Good luck calling them! they're a pain that way. The email address in my guide has always worked well, though.

Edited November 11, 2013 by lost_at_sea

[Nich-Nick 3,354]

Can I jump in here with some thoughts?

I had a boss who told me once "I can much easier "forgive" than give you "permission". Meaning he wasn't going to authorize what I wanted to do but he would overlook it if I did it. So you are on an extended holiday to the US because you are an American. Your family home residence is in the UK. You qualify. I wouldn't lay my cards out on the table. Besides it's next to impossible to "call" the embassy or the USCIS office (which are not the same thing BTW.)

File the form asap. Hurry before they all leave for long Christmas breaks to the US and work with a small staff. THEN withdraw the other petition filed in the US after approval. It could be approved by London USCIS in 3 weeks. Wouldn't that work Lost?

Also domicile or "intent to domicile" is very easy at a London interview. I have known people who just showed emails back and forth with apartment locators discussing moving as enough for intent to domicile. You have a lease to show that you have been on a trip to sort things for your eventual move. If you still have a US driver license or bank, it shows you never relinquished your domicile. Your residence and domicile are different. Read the London page where they discuss it. There's a link in the step by step guide for London DCF that Lost_at_sea wrote. Have you read that yet?

[Dean&Dana 0]

Can I jump in here with some thoughts?

I had a boss who told me once "I can much easier "forgive" than give you "permission". Meaning he wasn't going to authorize what I wanted to do but he would overlook it if I did it. So you are on an extended holiday to the US because you are an American. Your family home residence is in the UK. You qualify. I wouldn't lay my cards out on the table. Besides it's next to impossible to "call" the embassy or the USCIS office (which are not the same thing BTW.)

File the form asap. Hurry before they all leave for long Christmas breaks to the US and work with a small staff. THEN withdraw the other petition filed in the US after approval. It could be approved by London USCIS in 3 weeks. Wouldn't that work Lost?

Also domicile or "intent to domicile" is very easy at a London interview. I have known people who just showed emails back and forth with apartment locators discussing moving as enough for intent to domicile. You have a lease to show that you have been on a trip to sort things for your eventual move. If you still have a US driver license or bank, it shows you never relinquished your domicile. Your residence and domicile are different. Read the London page where they discuss it. There's a link in the step by step guide for London DCF that Lost_at_sea wrote. Have you read that yet?

Hi Nich-Nick,

What you say makes a lot of sense, and we might reconsider calling now. That had been our fear as well--that calling might complicate it unnecessarily. I also agree that we should file the form ASAP. However, I didn't think it was allowable to have both the I-130 and the DCF out there simultaneously?

I did read Lost_at_sea's London DCF guide yesterday, which was very helpful. Most of my fears have been assuaged, now my only remaining worry is whether I should withdraw the I-130 now. And without hearing from them, I'm slightly concerned that they would mistakenly conclude that a 4 month trip was an abandonment of my UK residency -- but it was never meant to be this long--it was meant to just be to establish domicile and file, then return. But there were/are some big family events that have delayed me. I did always intend to go back while we wait. Well, I still think you might be right about asking for forgiveness, not permission We will have to take our chances. Thanks Lost_at_sea and Nich-Nick for your help, it really is such a godsend!

[Dean&Dana 0]

I don't think it would be damaging to ask. I'd be careful not to say you've relinquished UK residency.

The I-130 needs to be signed by the American, and you've got some paperwork to gather that you might prefer to wait and do together in person when you get back in December. Take a look at their checklist and decide.

P.S. Good luck calling them! they're a pain that way. The email address in my guide has always worked well, though.

Lost_at_sea,

Thank you so much for getting back to us with all this advice so quickly! Today has turned out to be a big planning day for my husband and I (though it's getting late there now), and all this advice has really helped clarify the situation for us!